Body Corporate 85659 v Young - [2017] NZHC 1370

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-579 [2017] NZHC 1370

UNDER the Unit Titles Act 2010

IN THE MATTER

of the recovery of unpaid levies

BETWEEN

BODY CORPORATE 85659
Plaintiff

AND

LESLIE YOUNG AND SUZANNE LEE YOUNG Defendants

Hearing: 8 February 2017

Appearances:

A Knowsley and D Hunt for the plaintiff
F B Collins for the defendants

Judgment:

21 June 2017

JUDGMENT OF ASSOCIATE JUDGE SMITH

[1] The plaintiff (the Body Corporate) has applied for summary judgment on its claim for unpaid levies in respect of 10 residential units owned by Dr and Mrs Young in a unit title development located at 219 Willis Street, Wellington, known as Richard Pearse House (the development).

[2] Dr and Mrs Young filed a notice of opposition to the summary judgment application. In addition, they have filed an application for an order directing that the Body Corporate’s current solicitors, Rainey Collins, may not act any further in the proceeding (the representation application). I now give judgment on the representation application.

[3] The development was completed in 1998, when 100 new unit titles were created. There are four commercial retail units on the ground floor, 24 residential

BODY CORPORATE 85659 v YOUNG [2017] NZHC 1370 [21 June 2017]

units on levels one and two, and 72 residential units on levels three to eight. Dr and

Mrs Young’s 10 units are located on levels one and two.

[4] The ground floor commercial/retail units have very large windows, and the exterior of these units are overhung by a concrete verandah. The units on levels one and two have small windows, inset into and sheltered by concrete walls. The exterior of levels three to eight are principally glass, with the cladding and the windows exposed to the elements.

[5] The dispute arises out of the Body Corporate’s levies relating to the cost of replacing the steel frame windows on levels three to eight with new aluminium joinery and double glazing. Dr and Mrs Young contend that the owners on level three to eight will obtain far greater benefit from the new window frames and double glazing of their units than they will, and that levying Dr and Mrs Young based on their utility interests in their 10 units on levels one and two is not equitable. As Dr Young put it in his affidavit, “it is unfair to ask us to subsidise and/or provide an interest-free loan to the owners of level three to eight who are the only owners in the building who have received any substantial benefit from this work”.

[6] Dr and Mrs Young have filed an affidavit by a registered valuer, Mr Truebridge, comparing the relative benefits from the work obtained by the owners on levels three to eight, and the owners on levels one and two.

[7] In the representation application, Dr and Mrs Young contend that Rainey Collins’ independence is compromised, because its advice is in issue in the proceeding and/or a staff member may need to give evidence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NZHC 1370
Decision Date: 21 June 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Body Corporate 85659 has applied for summary judgment in a claim for unpaid levies in respect of 10 residential units owned by Dr and Mrs Young. The units are located in a unit title development known as Richard Pearse House, at 219 Willis Street, Wellington. Dr and Mrs Young oppose the application. They have also filed an application for an order directing that the Body Corporate's current solicitors, Rainey Collins, may not act any further in the proceeding. Associate Judge Smith dismissed the representation application. The Body Corporate is entitled to costs, which are fixed on a 2B basis, with disbursements to be fixed by the Registrar. The Registrar is directed to convene a telephone conference on the first practicable date after 3 July 2017, for the purposes of setting a date for the hearing of the summary judgment application (and giving such directions as may be necessary with regard to the hearing of that application).

Orders